United States v. Daniel Kemp, Sr. ( 2023 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4185
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DANIEL N. KEMP, SR.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:19-cr-000149-BO-2)
Argued: September 19, 2023 Decided: December 13, 2023
Before HARRIS and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit
Judge.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Harris wrote
the majority opinion, in which Judge Quattlebaum and Senior Judge Keenan joined. Judge
Quattlebaum wrote a concurring opinion.
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ARGUED: Daniel Baker McIntyre, III, Charlotte, North Carolina, for Appellant. Thomas
Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller,
Deputy Assistant Attorney General, Appellate Section, Criminal Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Michael F. Easley, Jr., United
States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
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PAMELA HARRIS, Circuit Judge:
Defendant Daniel N. Kemp, Sr., was charged with nine counts of sexually abusing
his adopted children. Pursuant to an agreement with the government, he pleaded guilty to
one count of aggravated sexual abuse, and the remaining charges were dismissed. The
district court sentenced Kemp to life imprisonment – a term within the Sentencing
Guidelines range adopted by the court – and to a lifetime term of supervised release.
Kemp appealed, and his appointed counsel filed an Anders brief raising two issues
but concluding that the appeal was without merit. See Anders v. California, 386 U.S. 738(1967). After this court ordered supplemental briefing to address additional issues
regarding Kemp’s conviction and sentence, the government asked that we dismiss Kemp’s
appeal as untimely. We conclude, however, that the government has forfeited the
timeliness issue and we therefore reach the merits of Kemp’s appeal. For the reasons given
below, we affirm Kemp’s conviction. But because Kemp’s written judgment includes
discretionary conditions of supervised release that were not orally pronounced at
sentencing, we follow our usual practice, see United States v. Rogers, 961 F.3d 291 (4th
Cir. 2020), vacating Kemp’s sentence and remanding for resentencing.
I.
A.
As the district court emphasized at sentencing, this case arises from very disturbing
facts. While Daniel Kemp was serving in the United States Army in New York, he and his
wife adopted six children. Years later, with Kemp now stationed in North Carolina, it was
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revealed that Kemp had been forcing his adopted children to engage in sexual acts at their
home. The investigation began when one of Kemp’s children told her teacher and other
school officials of the sexual abuse; after that, several of Kemp’s children reported their
own abuse to government investigators, sometimes in graphic terms. Investigators also
seized incriminating materials from Kemp’s electronic devices and uncovered DNA
evidence corroborating the children’s reports of sexual assaults and abuse.
Kemp was charged with nine criminal counts related to the sexual abuse of his
children. He entered into a plea agreement with the government under which he pleaded
guilty to one count of aggravated sexual abuse in violation of 18 U.S.C. §§ 7, 2241(a),
stemming from occasions when Kemp forced his youngest child to perform sex acts in the
basement of their house and the child’s bedroom. In exchange, the government dismissed
the other eight counts against Kemp.
Kemp’s plea agreement set out the statutory sentencing range for his § 2241(a)
conviction, specifying that the offense carried a maximum prison term of life and no
minimum term. The agreement also put Kemp on notice of a maximum supervised release
term of life, a maximum fine of $250,000, and an obligation to pay restitution to all his
victims, including those related to the dismissed charges. Finally, the agreement included
a broad appeal waiver under which Kemp waived his right to appeal his conviction and
sentence on any ground, reserving only the right to challenge a sentence that exceeded the
advisory Sentencing Guidelines range as established at sentencing or to seek relief for
ineffective assistance of counsel or prosecutorial misconduct.
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The district court conducted a plea colloquy with Kemp, see Fed. R. Crim. P. 11,
advising him of his rights and the charges against him and confirming that Kemp was
pleading guilty to one count of aggravated sexual abuse pursuant to a plea agreement with
the government. After the prosecutor described the factual basis for the plea – the forcible
sexual abuse of Kemp’s youngest child – the district court found that Kemp’s plea was
voluntary and had the necessary factual basis, and it entered a judgment of guilty on the
§ 2241(a) charge.
At sentencing, the district court adopted an advisory Sentencing Guidelines range
of 360 months to life, as calculated by Kemp’s Presentence Report. After hearing Kemp’s
allocution and six victim-impact statements and considering the sentencing factors set out
in 18 U.S.C. § 3553(a), the court denied a requested downward departure and sentenced
Kemp to life imprisonment. The court also imposed a lifetime term of supervised release.
Relevant here, the court did not orally pronounce the multiple discretionary conditions of
supervised release that were included in Kemp’s written judgment. After a continuation to
determine appropriate restitution, the judgment was amended to include $6,008,797 in
restitution.
B.
Under Rule 4(b) of the Federal Rules of Appellate Procedure, a defendant in a
criminal case must file a notice of appeal within 14 days of the entry of judgment. Fed. R.
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App. P. 4(b)(1)(A)(i). Kemp’s amended judgment was entered on January 8, 2021. Kemp
filed his notice of appeal on April 16, 2021, well outside that statutory period. 1
This court appointed counsel for Kemp and issued a briefing order. That order set
deadlines for Kemp’s opening brief, the government’s response brief, and Kemp’s reply
brief. And it expressly warned the government that failure to file a “motion to dismiss
within the time allowed for filing a response brief[] may result in waiver of defenses.” ECF
No. 10 at 2. In connection with that notice, it cited our Local Rule 27(f), which provides
that motions to dismiss on procedural grounds “should be filed within the time allowed for
the filing of the response brief.” 4th Cir. R. 27(f)(2). The order then described additional
procedures that apply to the filing of a defendant’s brief under Anders v. California, 386
U.S. 738 (1967), none of which bear on the filing of motions to dismiss.
Kemp’s appointed counsel timely filed an Anders brief stating that there were no
meritorious grounds for appeal but identifying as issues the district court’s calculation of
Kemp’s Sentencing Guidelines range and whether Kemp’s counsel provided effective
assistance before the district court. The government elected not to file a response brief.
But on the day a response would have been due, consistent with the briefing order and
Local Rule 27(f)(2), the government filed a motion to dismiss. In that motion, the
1
On March 22, 2021, Kemp filed with the district court a self-styled “Appeal
Extension Request,” seeking an extension of time to file any motions. The district court
denied the motion without prejudice. Because Kemp’s request was submitted more than
two months after entry of judgment, outside the maximum 30-day extension permitted
under the Federal Rules, see Fed. R. App. P. 4(b)(4), it does not affect the timeliness of
Kemp’s appeal.
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government sought dismissal on one and only one procedural ground, arguing that Kemp’s
appeal was barred in part by his appeal waiver. 2
After conducting an independent Anders review, this court ordered supplemental
briefing on two issues outside the scope of Kemp’s appeal waiver: whether errors and
omissions during Kemp’s plea colloquy cumulatively undermined the validity of his guilty
plea; and whether the court’s failure to orally pronounce the discretionary conditions of
Kemp’s supervised release constituted reversible error, see United States v. Singletary, 984
F.3d 341, 344–45 (4th Cir. 2021) (holding that such claims are not barred by a general
waiver of appellate rights). Kemp timely filed a supplemental brief. The government then
filed its response brief, addressing the identified claims on the merits and also asking, for
the first time, that we dismiss Kemp’s appeal as untimely.
II.
A.
We begin with the government’s request that we dismiss Kemp’s appeal on
timeliness grounds. As explained below, we conclude that the government forfeited its
right to invoke Rule 4(b)’s deadline when, in response to Kemp’s opening brief, it filed a
2
The government did not argue that Kemp’s appeal waiver foreclosed a Sixth
Amendment ineffective assistance of counsel claim. But an appeal regarding the
calculation of the Sentencing Guidelines range, the government argued, was precluded by
the waiver.
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motion to dismiss for one procedural reason – Kemp’s appeal waiver – but not another –
timeliness – that was equally apparent from the record.
Much of the background here is common ground. It is undisputed that Kemp filed
his notice of appeal outside the 14 days allowed by Rule 4(b) of the Federal Rules of
Appellate Procedure. The parties also agree that Rule 4(b) is not jurisdictional but is
instead a “mandatory claim-processing rule.” United States v. Hyman, 884 F.3d 496, 498
(4th Cir. 2018). That makes Rule 4(b) “inflexible,” in that we must “strictly apply” the 14-
day period if it is “timely raised.” Id. at 498–99. But it also means that Rule 4(b) is subject
to waiver and forfeiture, and we will deem an invocation of Rule 4(b) “forfeited if the party
asserting the rule waits too long to raise the point.” Id. at 498 (internal quotation marks
omitted); see United States v. Oliver, 878 F.3d 120, 123–24 (4th Cir. 2017) (explaining
that the government’s “fail[ure] to object promptly to an appeal’s untimeliness” generally
constitutes forfeiture).
What the parties dispute is whether the government “wait[ed] too long” here by
failing to invoke Rule 4(b) within the time for filing a response to Kemp’s opening brief.
After our decisions in Hyman and Oliver, this court revised Local Rule 27(f) to provide
that motions to dismiss on procedural grounds “should be filed within the time allowed for
the filing of the response brief.” 4th Cir. R. 27(f)(2). And as noted above, our initial
briefing order set a deadline for a response brief and tied that deadline to the requirements
of our local rule, notifying the government that failure to file a “motion to dismiss within
the time allowed for filing a response brief[] may result in waiver of defenses.” ECF No.
10 at 2. From that, Kemp argues, it was clear that any motion to dismiss under Rule 4(b)
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should have been filed within the time for responding to his Anders brief, and the
government’s failure to meet that deadline forfeited its right to invoke Rule 4(b) now. See
United States v. Turner, No. 19-4529, 2020 U.S. App. LEXIS 19407, at *1–2 (4th Cir. June
22, 2020) (unpublished order adopting this position and denying government’s motion to
dismiss under Rule 4(b) for failure to timely move in response to defendant’s Anders brief).
The government disagrees. In its view, expanded upon at oral argument, the Anders
context for this case is critical. When an Anders brief is filed, the government may but
need not file a response brief; if it chooses, it can “do nothing, allowing this court to
perform the required Anders review” itself. See United States v. Poindexter, 492 F.3d 263,
271 (4th Cir. 2007). That is what happened here, the government says, and as a result, the
deadline for a response brief in our initial briefing order – a response brief never filed –
should not be treated as controlling under Local Rule 27(f)(2). Instead, what matters is
that the government sought dismissal under Rule 4(b) in the only response brief it did file,
and that it did so within the “time allowed for the filing of [that] response brief,” see 4th
Cir. R. 27(f)(2), in our supplemental briefing order.
We need not resolve here how Local Rule 27(f)(2) generally will apply in the Anders
context. Because while it is true that the government may sit out an Anders brief, “do[ing]
nothing” in response, see Poindexter, 492 F.3d at 271, that is not what happened here.
Instead, the government did respond to the Anders brief, and it did so with the motion to
dismiss on procedural grounds contemplated by Local Rule 27(f)(2), filed within the time
for the response brief set out in the original scheduling order. The only thing it did not do
was include in that motion, which rested exclusively on the defendant’s appeal waiver, the
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different procedural ground – timeliness – on which it now asks us to dismiss this appeal.
The government has provided no justification for this omission, and we can think of none;
at the time the government filed its motion to dismiss, the timeliness issue would have been
just as apparent from the record as the appeal-waiver problem. Under these circumstances,
we conclude, the government has forfeited its right to invoke Rule 4(b) and to press its
timeliness objection now. See Oliver, 878 F.3d at 123 (explaining that the government
forfeits a Rule 4(b) claim when it fails to object on that ground “in either its merits brief or
an earlier motion to dismiss”).
We held in Oliver that when the government does not promptly object to an untimely
appeal, we must “assume that the [g]overnment wishes the court to decide the case on the
merits.” See id. at 128. Our court made precisely that assumption here when the
government filed its motion to dismiss on one procedural ground without raising the
timeliness objection that was also apparent on the record. As a result, this court performed
its own required independent review under Anders, devoting substantial time to identifying
and ordering supplemental briefing on potential issues that fell outside the scope of Kemp’s
appeal waiver. Permitting the government to invoke Rule 4(b) now would do a disservice
to the efforts of this court and defense counsel, who justifiably assumed that the
government’s motion to dismiss included all then-applicable procedural grounds on which
the government wished to rely. Because we find that the government forfeited its right to
invoke Rule 4(b) by failing to raise it in its earlier motion to dismiss, we move on to the
merits of Kemp’s appeal.
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B.
1.
We begin with Kemp’s conviction. Kemp first argues that the district court’s plea
colloquy failed to comply with Rule 11 of the Federal Rules of Criminal Procedure in
multiple respects, and that the cumulative effect of those errors was sufficient to undermine
the validity of his guilty plea. Because Kemp “did not attempt to withdraw his guilty plea
in the district court,” we review this claim for plain error only, see United States v.
Lockhart, 947 F.3d 187, 191 (4th Cir. 2020) (en banc), and find no reversible error.
Rule 11 outlines the requirements for a district court plea colloquy, designed to
ensure that a defendant “understands the law of his crime in relation to the facts of his case,
as well as his rights as a criminal defendant.” United States v. Vonn, 535 U.S. 55, 62
(2002); see Fed. R. Crim. P. 11(b)(1). We agree with Kemp that this colloquy fell short in
multiple respects. The court skipped over certain advisements of rights – failing to inform
Kemp, for instance, of his right to be represented by counsel. See Fed. R. Crim. P.
11(b)(1)(D). The court did not confirm, as it should have, that Kemp’s plea did not result
from force, threats, or promises. See Fed. R. Crim. P. 11(b)(2). But Kemp was represented
by counsel throughout, and the district court did determine that his plea was voluntary, so
in context, these omissions may have had no measurable effect.
There are other errors, though, of more potential significance. Perhaps most
notably, the district court failed to discuss its authority to order restitution, as required by
Rule 11(b)(1)(K) – and then imposed restitution totaling roughly $6 million. And the
discussion of Kemp’s appeal waiver, see Fed. R. Crim. P. 11(b)(1)(N), was less than
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perfectly clear, with the court first suggesting that Kemp had not waived any appellate
rights and then informing Kemp that he had reserved his right to appeal “from the
sentencing excessive guideline.” J.A. 33–34.
As noted above, however, our review here is limited to plain error. Under that
standard, Kemp can prevail and withdraw his plea only if he demonstrates an obvious or
“plain” error that “affected his substantial rights.” Lockhart, 947 F.3d at 191. In evaluating
whether Rule 11 omissions affected a defendant’s substantial rights, we consider whether
the defendant had independent notice of the omitted information, as from a plea agreement.
United States v. General, 278 F.3d 389, 394–95 (4th Cir. 2002) (noting that the written
plea agreement provided the Rule 11 information omitted in the plea colloquy). And here,
Kemp’s signed plea agreement did make him aware of much of the information missing
from his plea colloquy, including his obligation to pay restitution to all his victims and the
actual terms of his appeal waiver.
Moreover, to establish an effect on his substantial rights in this context, Kemp bears
the burden of establishing “a reasonable probability that, but for the error, he would not
have entered the plea.” Lockhart, 947 F.3d at 192 (internal quotation marks omitted).
Kemp has not even attempted to make that showing, offering no account of how these
omissions or errors, even in the aggregate, led him to accept a plea agreement he otherwise
would have declined. Instead, the record evidence suggests the contrary, with Kemp’s
counsel explaining at sentencing that Kemp chose to plead guilty in part to spare his
children the further pain of a trial. See United States v. Kim, 71 F.4th 155, 167 (4th Cir.
2023) (considering as part of its substantial rights analysis the defendant’s “deep shame”
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and noting that proceeding to trial would invite more public attention). Viewing the record
in its entirety, we conclude that Kemp has failed to meet his burden of demonstrating that
the errors and omissions in his colloquy, assuming they qualify as “plain,” affected his
substantial rights, as required for relief under plain error review.
Kemp raises one other challenge to his conviction, contending that his district court
counsel provided ineffective assistance in violation of the Sixth Amendment, in part by
misleading him about his potential sentence. An ineffective assistance claim will be
addressed on direct appeal only when “an attorney’s ineffectiveness conclusively appears
on the face of the record.” United States v. Faulls, 821 F.3d 502, 507–08 (4th Cir. 2016).
Because Kemp’s claim relies on alleged out-of-court statements by his district court
counsel, this is clearly not such a case. Kemp’s ineffective assistance claim “should be
raised, if at all, in a 28 U.S.C. § 2255 motion.” Id. at 508.
2.
We turn finally to Kemp’s sentence. It is undisputed that the district court failed to
orally pronounce at sentencing multiple discretionary conditions of supervised release that
it subsequently imposed in Kemp’s written judgment. As the government concedes, that
constitutes error under United States v. Rogers, 961 F.3d 291, 300 (4th Cir. 2020), violating
the defendant’s right to be present at sentencing.
The only dispute in this case is over remedy. We have identified a “clear rule” for
remedying Rogers errors. See Singletary, 984 F.3d at 344. When a district court fails to
orally pronounce discretionary conditions of supervised release, we do not simply strike
the unpronounced conditions from the judgment. See id. at 346 (rejecting defendant’s
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request that unpronounced conditions be stricken from his judgment). Instead, we vacate
the entire sentence and remand for the district court to resentence the defendant. Id. A full
resentencing is generally appropriate, we have explained, because “custodial and
supervised release terms [are] components of one unified sentence.” Id. at 346 n.4 (quoting
United States v. Ketter, 908 F.3d 61, 65 (4th Cir. 2018)); see United States v. Singletary,
75 F.4th 416, 427 n.7 (4th Cir. 2023) (“Singletary II”) (recognizing that defendant may
elect a more limited remand).
Nevertheless, the government asks for precisely the remedy we ruled out in
Singletary: in lieu of vacating Kemp’s sentence and remanding for resentencing, it urges
we should vacate only the unpronounced conditions in Kemp’s judgment. According to
the government, a remand for resentencing would be no more than an empty formality,
because the district court would undoubtedly resentence Kemp to life imprisonment. For
support, the government points to our unpublished decision in United States v. Calderon,
No. 19-4907, 2022 WL 898012, at *1 (Mar. 28, 2022) (per curiam), in which we indeed
remedied a Rogers error – in the sentencing of a defendant subject to a mandatory life term
of imprisonment – by vacating the unpronounced conditions without a remand.
We decline to depart here from our ordinary rule that the remedy for Rogers error
“is not . . . simply to strike the [unpronounced] conditions from the written judgment.”
Singletary, 984 F.3d at 346. The government’s argument – that a full remand for
resentencing is pointless in Kemp’s case because the district court would likely reimpose
the same sentence – could be pressed in virtually any case; an exception that broad would
swallow the Singletary rule altogether. In Calderon, the defendant’s life sentence was
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mandatory, so it at least was certain that his term of imprisonment would not change on
remand. But here, Kemp was sentenced to a discretionary life sentence, at the top of his
Sentencing Guidelines range, so a full resentencing could affect his term of incarceration. 3
We recently reiterated that defendants who succeed on Rogers claims “are entitled to a full
vacatur of their sentences and remand for resentencing” if they so request, Singletary II, 75
F.4th at 427 n.7, and that is the rule we apply today. 4
III.
For the reasons stated, we affirm Kemp’s judgment of conviction. We vacate
Kemp’s sentence and remand for resentencing consistent with this opinion.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
3
Given this important distinction, we need not consider whether Calderon, an
unpublished decision without precedential effect, is fully consistent with our reasoning in
Singletary. Even assuming that Calderon’s approach is appropriate in cases involving
mandatory life sentences, it would not apply to the discretionary sentence at issue here.
4
Because we vacate Kemp’s sentence and remand for resentencing due to Rogers
error, “we need not and should not proceed further to reach [his] additional arguments
about his prior sentencing.” Singletary, 984 F.3d at 344. Accordingly, we deny as moot
the government’s motion to dismiss, pursuant to Kemp’s appeal waiver, Kemp’s challenge
to the calculation of his Sentencing Guidelines range.
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QUATTLEBAUM, Circuit Judge, concurring:
I concur in the majority’s opinion. It properly applies our precedent to this appeal.
But I write separately to address my concerns about what might be called our Rogers-
Singletary jurisprudence. To me, the internal reasoning of Rogers and Singletary is
inconsistent and conflicts with our precedent concerning errors in a written judgment. In
addition, while our stated remedy for Rogers-Singletary errors is a full resentencing, we do
not consistently employ it. Last, I am also concerned that requiring a full resentencing is
unnecessary to adequately remedy Rogers-Singletary errors and out of step with how other
courts of appeals address these issues. To explain my concerns, I will start by explaining
the development and current approach we take toward Rogers-Singletary errors. I will then
discuss some of the problems stemming from that approach. Lastly, I will prescribe what,
in my view, would be the better approach to remedies. 1
I.
How did we get here? A criminal defendant has the right to be present at his
sentencing. That right is rooted in the Fifth Amendment’s Due Process Clause. See United
States v. Gagnon, 470 U.S. 522, 526 (1985). In practice, this right is reflected in Federal
Rule of Criminal Procedure 43(a)(3). That Rule provides that “the defendant must be
1
Lest anyone think I am throwing stones, I joined Rogers in full. I appreciate our
effort to be faithful to Rule 43 and the reasons behind it. But my thinking has evolved as
we continue to address these errors with our required full-resentencing remedy.
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present at . . . sentencing.” To protect a criminal defendant’s right to be present, a district
court must orally pronounce a defendant’s sentence in the defendant’s physical presence.
See United States v. Lawrence, 248 F.3d 300, 303–04 (4th Cir. 2001).
A Rule 43(a)(3) problem occurs when the district court’s oral sentencing
pronouncement differs from the later written judgment. When the oral and written
sentences diverge, the parties may justifiably wonder what the defendant’s actual sentence
is. But this is not a new problem. A long line of cases establishes a general rule that if a
criminal defendant’s eventual written judgment conflicts with the oral pronouncement at
sentencing, the oral pronouncement controls over the written judgment. See Rakes v.
United States, 309 F.2d 686, 687 (4th Cir. 1962) (“[T]he sentences to be served in these
cases are those pronounced in the defendant’s presence in open court and not those set out
in the written judgments.”); see also United States v. Morse, 344 F.2d 27, 31 n.1 (4th Cir.
1965) (“To the extent of any conflict between this written order and the oral sentence, the
latter is controlling.”). Our sister circuits have also recognized this rule. See United States
v. Daddino, 5 F.3d 262, 266 n.5 (7th Cir. 1993) (collecting cases).
A few years ago, our court addressed this issue in the context of discretionary
conditions of supervised release not announced at sentencing but that appear in the written
judgment. In United States v. Rogers, we held “that all non-mandatory conditions of
supervised release must be announced at a defendant’s sentencing hearing.” 961 F.3d 291,
296 (4th Cir. 2020). In that case, a criminal defendant’s written judgment included 22 non-
mandatory or “discretionary” terms of supervised release that were not pronounced orally
at sentencing. Id. at 295. We first analyzed whether “a condition that was not pronounced
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orally at sentencing may be included in a later-filed written judgment without creating a
conflict that will nullify the condition.” Id. at 296. Because discretionary terms, unlike
mandatory ones, cannot be imposed without a district court’s “individualized assessment
. . . that they are justified in light of the statutory factors,” id. at 297, we held that those
terms must be orally pronounced 2 to protect a criminal defendant’s rights under Rule 43(a).
Id.Requiring oral pronouncement of discretionary conditions, we reasoned, primarily
protects a criminal defendant’s ability to object and “contest whether a discretionary
condition is appropriate under all the relevant circumstances.” Id. at 298. Additionally, “the
requirement that discretionary conditions be orally pronounced at sentencing brings the
pronouncement rule into line with the requirement that discretionary conditions be
adequately explained.” Id. (citing United States v. McMiller, 954 F.3d 670, 676 (4th Cir.
2020)).
In Rogers, we also prescribed a unique remedy for this situation. We accepted the
defendant’s argument that “the oral sentence prevails, rendering the challenged conditions
nullities,” id. at 295–96. But we then vacated the defendant’s entire sentence and remanded
to the district court for a full resentencing, id. at 301. We suggested, however, that a
2
But along with this bright-line rule, Rogers also stated that courts may properly
orally pronounce a discretionary condition of supervised release through incorporation,
without pronouncing each condition separately. That is, a district court satisfies its
obligation to orally pronounce discretionary conditions by “expressly incorporating . . . a
court-wide standing order that lists certain conditions of supervised release,” because the
“later-issued written judgment that detail[ed] those conditions may be construed fairly as
a ‘clarification’ of an otherwise ‘vague’ oral pronouncement.” 961 F.3d at 299.
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different error potentially required this remedy. “Many of the discretionary conditions
listed in Rogers’ written judgment are recommended by the Guidelines only under
circumstances not present in this case or are not recommended by the Guidelines at all.”
Id. at 301 n.3. So, we then claimed “that we would be required to vacate Rogers’ sentence
no matter what rule we adopted.” Id. (emphasis added). In other words, we vacated for a
full resentencing in Rogers not because of any problematic discretionary conditions, but
because another error necessitated it. But the remedy of a full sentencing stuck.
We reaffirmed and extended Rogers in United States v. Singletary. There, the
criminal defendant’s written judgment included two non-mandatory conditions that had
not been pronounced at sentencing. United States v. Singletary, 984 F.3d 341, 343 (4th Cir.
2021). We reiterated that “[d]iscretionary conditions that appear for the first time in a
subsequent written judgment . . . are nullities; the defendant has not been sentenced to
those conditions, and a remand for resentencing is required.” Id. at 344. We also extended
this principle by holding that these types of errors fall outside the scope of an appeal waiver
as part of a plea agreement. See id. at 345. Because “the heart of a Rogers claim is that
discretionary conditions appearing for the first time in a written judgment in fact
have not been ‘imposed’ on the defendant,” any waiver of appeal rights concerning “the
conviction and whatever sentence is imposed” did not cover the error. Id.Notably, Singletary doubled down on Rogers’ remedy—vacating and remanding for
a full sentencing. We rejected the defendant’s argument to take a blue pencil to the
judgment, vacating any unannounced additional discretionary conditions. See id. at 346
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(“Under Rogers, the remedy for this error is not, as Singletary suggests, simply to strike
the financial conditions from the written judgment.”).
But we also rejected the government’s request to limit vacatur and resentencing to
the conditions at issue, grounding that idea in a criminal defendant’s “unified sentence.”
Id. at 364 n.4. Instead, Singletary required a full resentencing because “Rogers drew no
distinction between the defendant’s supervised release sentence and his custodial sentence;
instead, it simply vacated his entire sentence and remanded for resentencing.” Id. We also
said in dicta that a full resentencing “appears to be the proper approach, given that
‘custodial and supervised release terms [are] components of one unified sentence.’” Id.(quoting United States v. Ketter, 908 F.3d 61, 65 (4th Cir. 2018)). Under that approach,
“[t]reating custodial and supervised release terms as components of one unified sentence
appropriately recognizes the interdependent relationship between incarceration and
supervised release.” Ketter, 908 F.3d at 65. Because terms of incarceration and
discretionary conditions of supervised release are “complementary tools employed by
judges when crafting an appropriate sentence,” and because of the “reciprocal relationship
between a prison sentence and a term of supervised release,” id. at 65–66, Singletary
suggests that a full resentencing is the proper way to remedy a violation of a defendant’s
right to be present.
II.
What’s wrong with this? Three things. One, the internal reasoning of our approach
to Rogers-Singletary errors is inconsistent. Two, we have not been consistent in how we
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remedy errors in written judgments generally and Rogers-Singletary errors specifically.
Three, our stated remedy for Rogers-Singletary errors—full resentencing—is unnecessary
to remedy Rogers-Singletary errors and at odds with how other courts of appeal address
the same issue.
First, the description of any unannounced conditions as “nullities” in Rogers and
Singletary is both inconsistent with the remedy those decisions require and departs from
our prior precedent. By describing a condition detailed in the written judgment but
unannounced at sentencing as a “nullity,” one might naturally assume that we would
remedy the problem by ordering that this condition simply is not part of the judgment.
Indeed, Singletary’s approach to appellate waiver accepts that unannounced conditions do
not exist. See 984 F.3d at 345 (“[T]he heart of a Rogers claim is that discretionary
conditions appearing for the first time in a written judgment in fact have not been
‘imposed’ on the defendant.”). But if an unannounced condition is really a nullity, why
shouldn’t the remedy be to remand to conform the written judgment to the oral sentence?
That is, if the criminal defendant has never actually been sentenced to an unannounced
condition, then why not take a blue pencil to the judgment to conform it to the oral
pronouncement? Moreover, isn’t taking a blue pencil to conform the written judgment
more faithful to our own precedent on the right to be present? See Morse, 344 F.2d at 31
n.1 (“The proper remedy is for the District Court to correct the written judgment so that it
conforms with the sentencing court’s oral pronouncements.”).
We are also beginning to see the uneven consequences of labeling unannounced
supervised release conditions nullities. We reasoned in Singletary that referring to at-issue
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conditions as nullities moves these types of errors outside the scope of a typical appeal
waiver. See 984 F.3d at 345. But we also recently explained in United States v. Brantley
that calling something a nullity “does not make the written judgment entered [by a district
court] invalid.” No. 22-4166, 2023 WL 8215209, at *3 (4th Cir. Nov. 28, 2023). And
because those judgments, “no matter how assertedly incorrect, are presumptively valid and
binding,” defendants cannot use the “nullity” language to avoid our appellate deadlines. Id.Second, our approach to these errors inconsistently characterizes the right to be
present as procedural at times and as substantive at others. In Rogers, we explained the
“chief” reason for the requirement that a criminal defendant be present at sentencing was
to preserve the ability to object and “contest whether a discretionary condition is
appropriate under all the relevant circumstances.” 961 F.3d at 298. This language sounds
procedural. But we have also used substantive language to defend the remedy. See
Singletary, 984 F.3d at 346 n.4 (“[C]ustodial and supervised release terms [are]
components of one unified sentence.”) (quoting Ketter, 908 F.3d at 65). Indeed, declaring
a portion of a judgment as a “nullity” changes the substance of a criminal defendant’s
sentence. And the majority’s holding here that defendants are entitled to a full resentencing
for Rogers-Singletary errors “if they so request,” Maj. Op. at 15, suggests the right might
be substantive.
The inconsistency in classifying the right to be present as sometimes substantive,
sometimes procedural, has also led us to prescribe vastly different remedies for similar
types of errors. While Rogers and Singletary require a full sentencing for unannounced
conditions that show up in the later written judgment, we do not always require that. In
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some cases, when there is a slight difference between what was said at sentencing and what
ends up in the written judgment, we have allowed for a limited remand to fix the written
judgment rather than remanding for a full resentencing. See United States v. Locklear, No.
21-4161, 2023 WL 2300394 (4th Cir. Mar. 1, 2023). In Locklear, the district court orally
pronounced that the defendant would support his “children,” but the written judgment
stated that he would support his “dependent.” Id. at *1. We held that “the remedy for a
conflict of this nature is to remand to the district court to correct the written judgment so
that it conforms with the sentencing court’s oral pronouncements.” Id. (internal quotations
omitted).
But we’ve also looked to the written judgment itself to resolve discrepancies. See
United States v. Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003) (“In light of this ambiguity,
we shall look to the written criminal judgment as evidence of the sentencing court’s
intent.”). In Osborne, the defendant challenged her 188-month written sentence after the
district court orally pronounced a sentence of 180 months. Id. But because the sentencing
guidelines were adopted and 180 months would have fallen below the range, we viewed
the 180-month orally pronounced sentence as “ambiguous.” Id. Using the written
judgment, along with the fact the court intended to follow the guidelines, we essentially
corrected the oral pronouncement when “we conclude[d] that the district judge intended to
sentence Osborne to 188 months” and affirmed the written judgment. Id.As noted by the majority, Maj. Op. 14–15 & n.3, where we confront a criminal
defendant with a mandatory life sentence, we have forgone resentencing altogether. In
United States v. Calderon, the defendant alleged a Rogers error because the court did not
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announce two financial-related conditions of supervised release at his sentencing hearing
that later appeared on his written judgment. No. 19-4907, 2022 WL 898012 at *1 (4th Cir.
Mar. 28, 2022). We held that “[i]n these circumstances, we vacate the discretionary
conditions of supervised release.” Id. But we declined a full resentencing “[g]iven
Calderon’s mandatory life sentence” and simply blue penciled away the at-issue
conditions. Id. From these cases, it is not even clear that we have a preferred remedy for
Rogers-Singletary errors.
Third, our approach of vacating for a full sentencing is an outlier among other
circuits. Indeed, at the same time Rogers announced that we were “following the Fifth and
Seventh Circuits” in recognizing this error, 961 F.3d at 297, neither circuit appears to
require a full resentencing as the remedy. In United States v. Diggles, on which Rogers
relies, the Fifth Circuit affirmed a decision that simply vacated unannounced conditions as
the remedy. See 957 F.3d 551, 559 (5th Cir. 2020) (en banc). And in the Seventh Circuit’s
decision in United States v. Anstice, the court “vacate[d] the non-mandatory additional
conditions provided in the written judgment, and remand[ed] to allow the district court to
modify and reconsider Anstice’s sentence with respect to the two non-mandatory
conditions of supervised release.” 930 F.3d 907, 910 (7th Cir. 2019). Other circuits take a
similar tack. See, e.g., United States v. Handakas, 329 F.3d 115, 119 (2d Cir.
2003) (“[R]emand[ing] for reconsideration of the condition of supervised release
restricting the Defendant’s employment.”); United States v. Montoya, 82 F.4th 640, 656
(9th Cir. 2023) (en banc) (“[R]emand[ing] to the district court for the limited purpose of
reconsidering the supervised release conditions we have vacated herein.” (internal
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quotation marks omitted)). As far as I can tell, we are the only circuit to require a full
resentencing to remedy a violation of the right to be present.
To summarize, the full resentencing remedy mandated by Rogers and Singletary
seems inconsistent with declaring unannounced supervised release conditions nullities and
with Morse’s directive to conform written judgments to oral sentences. What’s more, we
do not always follow what we seem to require in Rogers and Singletary. Finally, we do not
have much company in our full-resentencing approach.
III.
Where do we go from here? Should we stick with what we said in Rogers and
Singletary and stop the deviations? Should we reiterate that a full resentencing is generally
the appropriate remedy for Rogers-Singletary errors but continue to articulate exceptions?
Or is there a better approach?
To answer these questions, we should first be clear on what we are trying to
accomplish. Our goal should be to correct the procedural error—the defendant needs to be
physically present when any discretionary conditions are announced so that he can object
to the conditions if necessary. A second goal should be to resolve any ambiguity between
the oral pronouncement and the written judgment by determining the district court’s intent.
And those goals point toward a more targeted remedy than a full resentencing. I see no
reason to require a full resentencing. Our approach so far seems to be like using a
sledgehammer to swat a fly. Instead, I suggest that for a mismatch between a district court’s
oral pronouncement and written judgment, we should follow the Second Circuit’s approach
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in Handakas, 329 F.3d at 119, and remand for a limited resentencing—giving district
courts the choice of whether to vacate problematic conditions or to orally pronounce any
unannounced condition. Under the Second Circuit’s approach, when there is a mismatch
between the oral pronouncement and written judgment, the court remands for the limited
purpose of allowing the district court to reconsider imposition of the at-issue condition,
which also affords the defendant an opportunity to be present. See id. In practice, that gives
the district court a choice. “On remand, if the district court intends to impose a
[discretionary condition], it must give [the defendant] an opportunity to object and, if any
such objections are overruled, orally announce the [condition] and again include [it] in a
new written judgment. If the district court determines not to impose [the condition] on
remand, an amended judgment must be issued deleting [it].” United States v. Grebinger,
No. 20-1025-CR, 2021 WL 5142709, at *4 (2d Cir. Nov. 5, 2021).
This approach would remedy the violation of a defendant’s procedural right to be
present under Rule 43. And it would also be the best way to clarify the intent of a sentencing
judge: “What was driving this judge’s decision to impose this sentence for this defendant?”
United States v. Griffin, No. 21-50294, 2022 WL 17175592, at *6–8 (5th Cir. Nov. 23,
2022) (Oldham, J., dissenting). After all, “a sentencing judge is the world’s leading expert
on his own thought process.” Id.26
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Of lesser importance is drawing a line that prioritizes oral over written or written
over oral. 3 Why do we need to pick a winner? Doing so may be what has led to our
inconsistency in remedying Rogers-Singletary errors. Instead, why not just recognize that
we have an ambiguity between the announced sentence and the written judgment and
attempt to clear it up in a way that complies with Rule 43? Whether it be an unannounced
condition that shows up for the first time in the written judgment, or slightly incongruent
wording, we aim to understand what the sentencing judge was attempting to do. That is,
our job should be to figure out whether the mismatch was on purpose (meaning the district
court meant to add something or clarify something using the written judgment) or by
mistake (meaning the district court simply forgot to orally announce conditions or did not
do so clearly). In my view, our remedy should help resolve the intent questions that emerge
during a mismatch while protecting a defendant’s right to be present under Rule 43.
Finally, adopting a limited remand approach would bring us in line with the remedy
we provide for similar errors. For example, in United States v. McMiller, 954 F.3d 670 (4th
3
I struggle with our current logic that privileges an oral pronouncement over a
written judgment. In virtually all other legal contexts, it is the written judgment, not an oral
pronouncement from the bench, that governs the parties’ rights and obligations. See Griffin,
2022 WL 17175592 at *9–10 (Oldham, J., dissenting) (describing the fundamental primacy
of written judgments in our legal system). Additionally puzzling is that we seem to
acknowledge that written judgments sometimes control over oral pronouncements. Under
Federal Rule of Criminal Procedure 32.1, a federal court may later modify or enlarge the
conditions of supervised release—without any oral pronouncement. More telling, Rogers
itself says that the written can control in certain circumstances: a mandatory condition
doesn’t have to be pronounced because a criminal defendant should be on notice. And as
mentioned above, we sometimes defer to the written judgment to understand what was said
at the oral pronouncement. United States v. Osborne, 345 F.3d 281, 283 n.1.
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Cir. 2020), we addressed supervised release special conditions that were not explained.
After concluding that the two special conditions imposed on the criminal defendant were
“procedurally unreasonable,” we remanded to the district court for further explanation. Id.
at 677. We did not blue pencil the conditions away. We did not order a full sentencing.
Instead, we cured a procedural error with a proportionate remedy.
In my view, it is time to rethink our approach to the remedy for Rogers-Singletary
errors. A limited remand would provide flexibility to the district court judge while fully
protecting the defendant’s right to be present.
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